Mr. Justice Sears
delivered the opinion of the Court.
Counsel for appellant contend :
First. That appellee was injured through his own negligence.
Second. That the danger which caused the injury was an assumed hazard.
Third. That there is a variance fatal to the judgment, in that the declaration avers that appellee was injured when he had occasion to use the elevator to carry freight, while the proof shows that he was not at the time so using it, but was merely assisting another employe of appellant in starting the empty elevator downward.
Fourth. That the trial court erred in admitting incompetent testimony, and in refusing to give the fifth, tenth, eleventh and twelfth instructions tendered by appellant.
Fifth. That the verdict is excessive.
It is uncontroverted that Hechinger, the president of appellant, instructed appellee to force down the rod to release the dogs which held the elevator whenever they became set. The fact that they did frequently become set, without direction of the operator and through the defective condition of the machinery, was known alike to appellee and appellant. There is no evidence that either of them was specially skilled in mechanism of this sort. Neither is there any evidence that appellee was informed as to the danger attending this defective condition of the machinery. There is, however, evidence that Hechinger was informed specifically .of such, danger. A witness, Duffy, testified that the elevator had fallen once before and injured a man, of which fact Hechinger knew, and that on another occasion, three or four weeks before the accident, “ I was on the third floor attending to my duties as shipping clerk, when a packer, shouted up the shaft for me to come down. I went down and found twenty to twenty-five feet of cable unwound from the drum, and the drum was still revolving and throwing it off. I ran to the elevator and pulled the rope and stopped it, and shouted up the shaft if there was any one on the elevator to get off, for they were liable to be killed. I made lots of noise doing so. ¡Next morning I had a conversation with Mr. Hechinger in reference to that. Mr. Hechinger wanted to know what I was making all that noise about yesterday afternoon, and I said I had good reason to make a noise. I said if they pounded back that dog some one surely would have been killed. He asked me how it was and I told him about the cable becoming unwound from the drum, and he kind of shook his head and said that was bad. There was nothing done after that in the way of fixing up or repairing the elevator up to the time of the accident.”
Hechinger did not directly deny this statement as to the conversation. He did testify, “ at no time prior to the time of the accident did I know or learn of anything the matter with the elevator.” The jury were warranted in discrediting this statement of Hechinger, for his previous testimony contradicted it by establishing that he did know that the safety device became set irregularly. He testified: “ Í didn’t tell him (appellee) if the dog was out to drive it in, not until he had started the elevator up to see if there was any slack of the cable, and then he could drive the dog in.” Appellee testified : “All I was told was to drive in the dog when it is out. I was not told to pull the elevator upwards or downwards. I did not receive any other instructions at all. Mr. Hechinger told me, ‘ Pound the dog in, in case it is out.’ ” Kecheisen, the superintendent, testified : “ I told him (appellee) if the dogs came out or the elevator would not work, not to touch it; to notify the parties below, Mr. Mages.” The jury were justified, however, in discrediting this testimony, for all the evidence showed that the irregular setting of the dogs was of so common and frequent occurrence that it would have been very strange had appellee been instructed upon each of such occasions to go to the landlord for aid. On the contrary it is undisputed that Hechinger, the president, instructed him to act" in the matter by releasing the set dogs.
Appellee, though having knowledge of the defective condition of the machinery, yet had the right to assume, in the absence of chargeable notice to the contrary, that it was reasonably safe for him to follow the command of the master and release,the car in the manner directed. His knowledge of the defective condition did not necessarily operate to charge him with knowledge of the. dangers therefrom arising. Illinois Steel Co. v. Schymanowski, 162 Ill. 456; Bailey on Master and Servant, 184.
Hor is there any evidence in this case which necessarily operates to charge appellee with notice of the dangers which would follow the carrying out of the master’s directions.
But the facts which do not necessarily operate to charge appellee, the servant, with notice of the danger, may operate to charge appellant, the master, with such notice. The obligation upon each arising from the mere knowledge of the defective condition is not alike. Illinois Steel Co. v. Schymanowski, supra.
“ If the machinery or premises are obviously defective, but not apparently dangerous, the master may be liable for not having taken the necessary steps to ascertain whether they were or were not in fact safe.” Wood on Master and Servant, Sec. 336.
It can not, therefore, be said that the conduct of appellee was such as to establish, as a matter of law, contributory negligence upon his part. On the contrary, it was a question for the jury, with ample evidence to sustain the conclusion reached by them.
The foregoing consideration disposes also of the second point urged, viz., that the danger in question was an assumed hazard.
It surely could not be held that the defective condition of this elevator was an ordinary risk incident to the employment. Heither, if the doctrine of assumed hazard may be so applied, could it be said that the' dangers arising from this unusual defect were known or should have been known to appellee, and hence they were assumed by .him. Moreover, in conducting himself in relation to the defective apparatus, appellee followed the specific directions of the master, upon the reasonable safety of which he might properly rely:- •
The' contention that the variance between declaration and proof as to what particular duty appellee was discharging when injured may be now availed of, can not be maintained. It was the-duty of appellant to call the attention of the trial court to this variance. It is not a matter which goes to appellee’s right of action but merely to the particular pleadings here. Appellee might equally recover whether he was engaged in carrying freight when injured, as alleged, or engaged in aiding another in starting the elevator for the purpose of carrying freight, as proved. In either case he was in the discharge of duty and following the master’s instructions. The superintendent, Kicheisen, testified: “ I told him (appellee) to look after the elevator, to see that there was no stranger that handled it.” .This variance can not be for the first time availed of in this court; for it could have been.obviated by amendment in the trial court. Wabash, St. L. & P. Ry. Co. v. Coble, 113 Ill. 115; Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; McCormick H. M. Co. v. Burandt, 136 Ill. 170.
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Mr. Justice Sears
delivered the opinion of the Court.
Counsel for appellant contend :
First. That appellee was injured through his own negligence.
Second. That the danger which caused the injury was an assumed hazard.
Third. That there is a variance fatal to the judgment, in that the declaration avers that appellee was injured when he had occasion to use the elevator to carry freight, while the proof shows that he was not at the time so using it, but was merely assisting another employe of appellant in starting the empty elevator downward.
Fourth. That the trial court erred in admitting incompetent testimony, and in refusing to give the fifth, tenth, eleventh and twelfth instructions tendered by appellant.
Fifth. That the verdict is excessive.
It is uncontroverted that Hechinger, the president of appellant, instructed appellee to force down the rod to release the dogs which held the elevator whenever they became set. The fact that they did frequently become set, without direction of the operator and through the defective condition of the machinery, was known alike to appellee and appellant. There is no evidence that either of them was specially skilled in mechanism of this sort. Neither is there any evidence that appellee was informed as to the danger attending this defective condition of the machinery. There is, however, evidence that Hechinger was informed specifically .of such, danger. A witness, Duffy, testified that the elevator had fallen once before and injured a man, of which fact Hechinger knew, and that on another occasion, three or four weeks before the accident, “ I was on the third floor attending to my duties as shipping clerk, when a packer, shouted up the shaft for me to come down. I went down and found twenty to twenty-five feet of cable unwound from the drum, and the drum was still revolving and throwing it off. I ran to the elevator and pulled the rope and stopped it, and shouted up the shaft if there was any one on the elevator to get off, for they were liable to be killed. I made lots of noise doing so. ¡Next morning I had a conversation with Mr. Hechinger in reference to that. Mr. Hechinger wanted to know what I was making all that noise about yesterday afternoon, and I said I had good reason to make a noise. I said if they pounded back that dog some one surely would have been killed. He asked me how it was and I told him about the cable becoming unwound from the drum, and he kind of shook his head and said that was bad. There was nothing done after that in the way of fixing up or repairing the elevator up to the time of the accident.”
Hechinger did not directly deny this statement as to the conversation. He did testify, “ at no time prior to the time of the accident did I know or learn of anything the matter with the elevator.” The jury were warranted in discrediting this statement of Hechinger, for his previous testimony contradicted it by establishing that he did know that the safety device became set irregularly. He testified: “ Í didn’t tell him (appellee) if the dog was out to drive it in, not until he had started the elevator up to see if there was any slack of the cable, and then he could drive the dog in.” Appellee testified : “All I was told was to drive in the dog when it is out. I was not told to pull the elevator upwards or downwards. I did not receive any other instructions at all. Mr. Hechinger told me, ‘ Pound the dog in, in case it is out.’ ” Kecheisen, the superintendent, testified : “ I told him (appellee) if the dogs came out or the elevator would not work, not to touch it; to notify the parties below, Mr. Mages.” The jury were justified, however, in discrediting this testimony, for all the evidence showed that the irregular setting of the dogs was of so common and frequent occurrence that it would have been very strange had appellee been instructed upon each of such occasions to go to the landlord for aid. On the contrary it is undisputed that Hechinger, the president, instructed him to act" in the matter by releasing the set dogs.
Appellee, though having knowledge of the defective condition of the machinery, yet had the right to assume, in the absence of chargeable notice to the contrary, that it was reasonably safe for him to follow the command of the master and release,the car in the manner directed. His knowledge of the defective condition did not necessarily operate to charge him with knowledge of the. dangers therefrom arising. Illinois Steel Co. v. Schymanowski, 162 Ill. 456; Bailey on Master and Servant, 184.
Hor is there any evidence in this case which necessarily operates to charge appellee with notice of the dangers which would follow the carrying out of the master’s directions.
But the facts which do not necessarily operate to charge appellee, the servant, with notice of the danger, may operate to charge appellant, the master, with such notice. The obligation upon each arising from the mere knowledge of the defective condition is not alike. Illinois Steel Co. v. Schymanowski, supra.
“ If the machinery or premises are obviously defective, but not apparently dangerous, the master may be liable for not having taken the necessary steps to ascertain whether they were or were not in fact safe.” Wood on Master and Servant, Sec. 336.
It can not, therefore, be said that the conduct of appellee was such as to establish, as a matter of law, contributory negligence upon his part. On the contrary, it was a question for the jury, with ample evidence to sustain the conclusion reached by them.
The foregoing consideration disposes also of the second point urged, viz., that the danger in question was an assumed hazard.
It surely could not be held that the defective condition of this elevator was an ordinary risk incident to the employment. Heither, if the doctrine of assumed hazard may be so applied, could it be said that the' dangers arising from this unusual defect were known or should have been known to appellee, and hence they were assumed by .him. Moreover, in conducting himself in relation to the defective apparatus, appellee followed the specific directions of the master, upon the reasonable safety of which he might properly rely:- •
The' contention that the variance between declaration and proof as to what particular duty appellee was discharging when injured may be now availed of, can not be maintained. It was the-duty of appellant to call the attention of the trial court to this variance. It is not a matter which goes to appellee’s right of action but merely to the particular pleadings here. Appellee might equally recover whether he was engaged in carrying freight when injured, as alleged, or engaged in aiding another in starting the elevator for the purpose of carrying freight, as proved. In either case he was in the discharge of duty and following the master’s instructions. The superintendent, Kicheisen, testified: “ I told him (appellee) to look after the elevator, to see that there was no stranger that handled it.” .This variance can not be for the first time availed of in this court; for it could have been.obviated by amendment in the trial court. Wabash, St. L. & P. Ry. Co. v. Coble, 113 Ill. 115; Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; McCormick H. M. Co. v. Burandt, 136 Ill. 170.
The fifth instruction, which tells the jury, in effect, that if appellee knew that something was wrong ivith the elevator, and did not promptly cease using it, he can not recover, was properly refused. It makes no distinction between knowledge that the safety appliance worked defectively and knowledge of the dangers therefrom arising.
The tenth instruction is as follows:
- “ The court' instructs the jury that if they believe from the evidence that plaintiff voluntarily went upon the elevator in question, without his duty calling him there, or being directed to go there by his employers, for the purpose of assisting John Blondet to handle the same, knowing that there was something wrong with the elevator, then and in that case he can not recover in this action, and your verdict should be for the defendant.”
A jury might question, upon receiving this instruction, whether it were the going upon the elevator voluntarily, “ without his duty calling him,” or the going with knowledge “ that there was something wrong with the elevator,” which would bar a recovery. There being no conflict in the evidence as to the circumstances under which appellee assisted Blondet, and it being undisputed that he was acting within the line of his duty, the instruction was misleading and improper in its charge as to the former, viz., acting beyond the line of his duty, and it was erroneous in law as to the latter, viz., the effect of his knowledge of some defect. The court did not err in refusing to give it.
The eleventh instruction is as follows :
“If the jury believe from the evidence in this case that the accident in question was occasioned by the carelessness or negligence of the plaintiff or of John Blondet in handling or managing the elevator in question, and not from any defect in the construction of the elevator, or in its being out of repair, of which defect or Avant of repair the defendant’s officers or agents had notice or knowledge, then your A?er-dict must be for the defendant.”
The jury had been sufficiently charged as to the effect of appellee’s negligence, if any, upon his right of recovery, by the eighth instruction. The fault of this instruction is, that it charges in effect, that if the accident was the result of the joint operation of negligence of Blondet and a defective condition of the machinery, of which appellant had no actual notice or knowledge, although perhaps chargeable with notice, yet no recovery could be had. It ivas not error to refuse to so instruct.
The tAvelfth instruction is, in part, as follows:
“If the plaintiff had the same notice or knowledge of defects in said elevator that the officers or agents of the Union Show Case Company did, and continued to use the same without objection, then he can not recover in this ease, and your verdict must be for the defendant.”
As applied to the facts here, this is not the law, and the instruction was- properly refused. Illinois Steel Co. v. Schymanowski, supra.
It is complained that the trial court erred in admitting, over objection, certain opinion evidence.
A witness, Jollings, an elevator builder, was examined as to what the' operation of the governor would be if the elevator was dropped.by releasing the dogs when there was slack cable. No specific objection is made to any hypothetical questions put as to the facts assumed; the only objection now urged being that it was a matter readily determinable by the jury, and not calling for opinion evidence.
We think that the evidence was properly admitted. Whether the governor would in such case, if in good working order, operate to stop the oar, and within what distance it would so operate, were matters which could not be determined merely from a recital of the mechanical structure, without some special skill and knowledge of the workings of such machinery. The decisions cited by appellant are in oases where it was sought to obtain the opinion of witnesses as to the safety or danger of certain conduct or conditions, and are not in point.
Finally, it is contended that the verdict is excessive. If it could be said that the evidence did not warrant a finding that appellee bad sustained a permanent injury to the spine, it might he well urged that the sum here awarded was in excess of the loss bv reason of temporary inability to labor. But there is the testimony of appellee that he still suffers from what he describes as pain “ in the small of the back.” He testified : “ I have it to-day yet; it has continued during all that time. It is not as severe now as it was then. If O I do some heavy lifting I find out afterwards it was too heavy, and I couldn’t go to work the next morning, and often two or three days I have stayed home that I wasn’t able to go down.” His physician, Dr. Wetherle, testified : “ From my examination of the patient and my treatment and diagnosis, I should say that the matter with his back was a concussion of the spine. I have treated him off and on since that time. I think it is permanent. I don’t think there is any cure for it,” etc. Dr. Downey testified: “ On several occasions I tested in different ways, and satisfied myself that there was a tenderness in that particular part of the spine, etc. From my examination, I should say that the man was suffering from an injury to the spinal cord, at least he is suffering from an injury to the spine in some form,” etc.
Dr. Sherwood, called by appellant, was of opinion that the facts indicated no spinal injury. We can not say that the jury were not warranted, from a fair consideration of all the evidence, in finding that there was a permanent injury; and upon such a finding the verdict would not be excessive.
The judgment is affirmed.